March 9, 2020

How obstetrics and orthopaedics can work together to help children with Erb’s palsy

In all clinical negligence claims, there are two issues to be considered initially: breach of duty, and causation.

First, we need to show that the care provided was so bad as to be negligent (“breach of duty of care”). The standard legal test is whether the care was so poor that no reasonable clinician working in the relevant discipline at the time of the events complained of would have treated the child they were treated. The test requires your legal team to compare “like with like” in terms of medical expertise.

The role of obstetrics

In Erb’s palsy cases it is usually necessary to instruct an obstetrician, as these claims (for the most part) occur in the setting of a difficult birth. An obstetrician will therefore be able to help identify what should have occurred to avoid harm, and therefore how a medical professional may have acted negligently.

Secondly, we need to establish whether any avoidable harm stems from any identified negligence. This test is known as causation.

The role of orthopaedics

In Erb’s palsy, there will always be damage to the brachial plexus. It is therefore frequently necessary to instruct a suitably specialised orthopaedic surgeon who will be able to comment upon the damage to the nerves, the probability of surgical intervention and the child’s long-term outcome (often this last cannot be known for some time after the birth – probably a period of years).

Some children may also benefit from surgery on the nerves in the brachial plexus following an injury. Such surgery will not actually cure the condition but can do much to mitigate its severity. Physiotherapy may also be appropriate, either on its own or in conjunction with surgery.

What happens when they work as expert witnesses

At first glance, the roles of the obstetric and orthopaedic experts are fairly distinct: one assesses the quality of care given at birth; the other reviews the consequences of this. However, there can be some overlap, and experts in these disciplines may be able to assist each other more than you might think.

Sometimes orthopaedic experts are able to say that the degree of injury to the brachial plexus is consistent with excessive traction (pulling) on the injured brachial plexus. In effect, they are able to work backwards from what is there now, to what happened at birth. This can be extremely important, particularly if the medical records are not very clear.

An orthopaedic surgeon may also be able to assess whether traction was in the correct plane, and thus whether the lead clinician performing the birth was pulling in the right direction, as well as with the appropriate amount of force.

Finally, an orthopaedic surgeon may be able to work with an obstetrician to find out what happened at the birth by a process of elimination. This is very important in Erb’s cases, where sometimes the records are not clear, or appear to be wildly at variance with the parents’ accounts. By piecing events together, experts of these disciplines can build cases that would otherwise not succeed.

Most people see this at work in case conferences, where the legal team will promote an informal, but detailed discussion of the issues with the experts. We hope to showcase something like this going in our legal clinic – with the right questions. Hopefully you can put some for us?

If you have any more questions for medical experts in the field of Erb's palsy, make sure to tune in on the evening of 11 March to our free Erb's Palsy Legal Clinic.

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